Felten vs. RIAA Hearing

On Wednesday I attended a hearing in Felten vs. RIAA, the lawsuit filed by Professor Felten, other Princeton researchers, and USENIX against the RIAA, SDMI, Verance, and the Department of Justice. As you already know, the judge dismissed the case. But taking a look at the hearing might provide some insight into how the judicial system works.

An incredibly brief review of the case: SDMI created an open challenge to break various forms of technical restrictions they had designed to allow music publishers to control how people use legitimately purchased music. A team led by Felten participated and was mostly successful at breaking them. The team wrote a paper, intending to publish it at a scientific conference. The RIAA/SDMI sent a letter to Felten, his employer, and the conference threatening them with legal action. Private legal discussions and a very public flap broke out. Felten filed a pre-emptive lawsuit, seeking to have his right to publish vindicated without waiting for a suit from the RIAA or SDMI. Immediately afterward, the RIAA publicly and repeatedly withdrew their threat to sue. Eventually the paper was, in fact, published, but the suit has continued.

Or just read through the Slashdot stories.

On to yesterday's hearing. The judge has before him a request from the defense to dismiss the case - they state that there is no real issue since the threat has been withdrawn. The Plaintiffs oppose this - they feel the threat is real, even if the RIAA has now withdrawn it.

Each side is represented by a half-dozen attorneys. Felten and several of the other plaintiffs are present as well. There are four or five press representatives. Other than that, the courtroom is empty. The first thing the judge does is take care of some routine business - the plaintiffs have requested that a C program, tinywarp.c, be filed under judicial seal with the court. The judge accepts this. He then goes briefly over the case so far, saying that he feels fully briefed by the papers submitted by both sides. He invites the plaintiff's lawyer, Gino Scarselli, to speak and respond to the last set of papers filed by the defense, but cautions him to avoid repeating any of the arguments set forth already in the many papers filed.

Scarselli emphasizes that the plaintiffs are in court for more than just the single threatening letter - he notes that the threat of legal action was considered quite real by the universities, who assigned lawyers to deal with the threat. He notes that Felten's paper was described as a "recipe for circumvention" by the defendants. He says that Felten also fears criminal prosecution due to his desire to publish a paper on SDMI in Scientific American - since Scientific American pays for papers, unlike the conference, this makes publication of the paper a commercial enterprise which might be charged as a criminal violation of the DMCA.

The judge is rather skeptical. He states that the difference between Felten and Sklyarov is "night and day". Sklyarov's actions are clearly criminal to the judge - Felten's actions not at all.

Scarselli and the judge spar a bit over a possible amendment to the complaint, regarding what exactly the plaintiffs were seeking in the lawsuit, and Scarselli retires from battle. Next up is David Kendall for the RIAA, responding to Scarselli.

Kendall starts off by talking about a stipulation (an agreement on facts) that both parties were negotiating over. Apparently both sides had almost been able to reach an agreement, except that the RIAA wanted the agreement to include dismissing the lawsuit and the plaintiffs did not. Kendall moves on to emphasize the argument they are making - that the suit should be dismissed because there is no conflict between the RIAA/SDMI and Felten. There are three reasons why a suit might be dismissed in this fashion - for mootness, because the plaintiffs lack standing to bring the suit, or because the issue isn't ripe. The judge asks Kendall which of the three would apply to this case - Kendall disclaims mootness (because that implies there once was an issue, but no longer), and states that this could be dismissed under either of the other reasons.

Richard Phillips is called to speak for the Department of Justice. Phillips states that his argument has been covered by the papers submitted and sits back down.

At this point only 40 minutes or so has elapsed. Normally, the judge might now take the case for decision, then some time later issue a written decision - instead, he decides (obviously he planned to do this in advance, since he has notes prepared) to render his decision in the case orally and immediately. He notes that he's doing so to save both parties further time and trouble, which indicates that he agrees with the defense that the case should be dismissed.

The judge starts off with the basics, which must have been rather boring to the lawyers involved. Under the Constitution, courts are limited to deciding cases where there is an actual case or controversy. He states flat-out that he sees no case or controversy here, in case anyone in the courtroom missed the hint he's already given.

He now takes a deep breath and begins going through his notes. He recaps the case from the beginning. I'll spare you that, read the documents if you wish.

Finally we get to his analysis. There are two separate issues - is there a case against the private entities? Is there a case against the Federal Government? The judge looks at the private entities first.

Again he discusses the requirement that cases be limited to actual controversies, that judges can't rule on abstract, theoretical, or speculative cases. He uses the word "speculative" approximately 20 times during his opinion, always referring to the plaintiffs' case. He relates a rambling analogy about bank fraud, essentially saying that the plaintiffs were asking for blanket immunity against ever being sued or prosecuted, which was impossible. He covers in great detail the RIAA's retraction of their threatening letter, how they've plainly denied any desire to sue Felten or anyone else over Felten's original paper.

The judge now looks at the First Amendment considerations relating to the suit against the RIAA/SDMI. He notes that the courts are required to avoid Constitutional questions if at all possible. He also notes that according to case law on the subject, there must be a real and immediate threat, that must remain throughout litigation, in order for the courts to consider the Constitutional questions around a non-criminal law (that is, the part of the DMCA that doesn't involve criminal penalties, only the possibility of civil lawsuits). Since the threat has not remained throughout litigation, he sees no Constitutional questions relating to the non-criminal part of the DMCA. He also notes that Plaintiffs do not allege they intend to violate the statute [ed. note: I'm not sure which part of the DMCA the judge was talking about right now - he may have been getting ahead of himself and talking about the criminal penalties.] and thus proceeding further would be "pre-enforcement review", which is not permitted. He closes this section by saying that he finds the Step-Saver and Salvation Army cases (referred to in the briefs submitted by both parties) instructive.

Somewhere during this speech, one of the attorneys for SDMI starts grinning, hugely, as if his team has just won the Super Bowl. He continues grinning and looking over at the attorneys for the plaintiffs until the hearing is over. None of the other attorneys for either side show any particular reaction.

The judge now continues with the suit against the Federal Government for Constitutional violations. He notes that the plaintiffs have not been directly threatened by the Government, nor prosecuted. He contrasts Felten's situation with that of Dmitry Sklyarov - the plaintiffs don't sell their program to the public, they do it for scientific purposes. Again he mentions the Step-Saver case. He quotes from the DMCA extensively. He states that the Government and plaintiffs have no adverse legal interests - that is, there is no possible criminal threat to Felten for doing what he's doing, in the judge's opinion. He notes that in the Sklyarov case there is such an adverse legal interest - obviously, Sklyarov was imprisoned! - and suggests that the Sklyarov case is a better way to get any First Amendment consequences of the DMCA adjudicated by the courts. The plaintiffs are not "manufacturing", according to the judge; nor are they offering their code for sale. The judge segues to what he sees as deficiencies in the plaintiff's legal complaint - they did not assert they planned to fully violate the criminal sections of the DMCA, mainly their assertions were that the Act is unclear and vague. Finally he closes - the plaintiffs must have an "objectively reasonable fear" of prosecution in order for the required legal conflict to exist, and the judge sees no such objectively reasonable fear.

A few more sentences and he's done. He reminds everyone that he may revise his written/final opinion from what he just dictated. He doesn't provide a time-frame for when the written opinion might be expected.

---

And that's it. My impression is that the most important phrase in the decision is "night and day". Judge Brown saw Sklyarov as a pirate, well-deserving of a long imprisonment term, and Felten as a goodie-two-shoes scientist who didn't have a care in the world. The very factors that made Felten a "good" subject for a civil liberties case allowed the judge to rule that there wasn't a case at all. Both the Justice Department and the RIAA prefer to have their test cases with suitably unsavory defendants - Russian pirates and shady hacker magazines are much preferred over all-American Princeton professors. The RIAA won't make the mistake of sending threat letters to professors again - not until the DMCA issues have been well-settled in the courts, anyway. Some people have criticized the EFF for over-reaching - trying to make a case out of nothing. But to a great extent the civil liberties groups have to play with the hand they're dealt. Felten was legitimately threatened, and even if the RIAA saw their mistake and starting trying to weasel out of it, I can't fault the civil liberties groups for trying to pursue this. They plan to appeal, of course.

Sausage

[Tackhead]

> But taking a look at the hearing might provide some insight into how the judicial system works.

Those that love sausage and respect the law should never see either being made.

the case seems valid to me.

[RestiffBard]

the judges decision seems valid as well. he's right there was no conflict but i understand felten and the university wanting to guard against the future. whats the statute of limitations on the dmca anyway? something i just thought of regarding a federal reaction. considering the recent events (sept 11) and the new definitions of hackers (those that break laws not those that code) as terrorists its possible that (IANAL) that felten could theoretically be charged with cyber terrorism by the feds.

if that were to occur i think the simplest defense is this. 1. gillete makes razor blades.
2. terrorists use razor blades to hijack airplanes
3. gillete is not a terrorist for making razor blades

1a. felten breaks SDMI
2a. bad hackers (terrorist) use SDMI to commit copyright infringement
3a. felten is not a bad hacker (terrorist) for making the tool.

at least thats how i would rule if i was the judge in such a case.

Reasonable ruling, I guess

[iabervon]

Right, so you can't sue someone to get a judgement in a case that hasn't been brought against you.
And, as much as you'd like to, you can't actually find out in advance if what you want to do will be judged legal before you do it. You have to wait until you've actually been sued in order to defend yourself.

That makes sense; otherwise, you'd have McDonalds suing everyone who spills coffee on themselves, alledging that the victem knew the coffee was hot.

Of course, it is a flaw in our government that the legislature creates the laws, and the courts interpret them, but the courts only deal with past events, so there's no way to know what a law means until someone is charged under it. It would be kind of nice to be able to say, "I will do this, but only if it's legal", but that's not possible in the US. This is probably because the court system requires motivated people on both sides and a lot of particulars to consider.

Business as usual in the judicial system

[Nurlman]

But taking a look at the hearing might provide some insight into how the judicial system works. . . Normally, the judge might now take the case for decision, then some time later issue a written decision - instead, he decides (obviously he planned to do this in advance, since he has notes prepared) to render his decision in the case orally and immediately

Deciding a case from the bench isn't the norm, but it's definitely not ususual. Long before the oral argument, the parties file extensive written briefs setting forth arguments and case citations, and the Judge (or, more likely, his clerk) has already reviewed those submissions in detail. Many judges believe that oral arguments by the parties don't typically clarify the case beyond what's in the briefs, and thus, decide the case before oral argument even begins. (Some judges even have a full written decision ready before oral argument-- sounds like this judge did.)

The very factors that made Felten a "good" subject for a civil liberties case allowed the judge to rule that there wasn't a case at all.

There's an old lawyer's addage that "easy cases make bad law." (Typical of the profession, there's also an addage that "hard cases make bad law," but let's ignore that one for the moment.) In other words, a judge faced with a situation where one party is clearly right, it's tempting to decide the case favorably to that party, even though the legal reasoning to get there is not the most sound. Here, there is no question that Felten was not subject to any continuing threat from the RIAA, and thus, there was no existing controversy. (The "chilling effect" argument was more interesting, but that goes to show you why easy cases make bad law.)

There's no question that Felten's case would have been far more effective a vehicle to challenge the DMCA if he had gone ahead and published the paper under the RIAA's threat, and then litigated the consequences (if any). But to put one's self in that position requires a martyrdom complex that Felten (and even Sklyrov) doesn't have.

Next move

[heikkile]

Ok, since there is not - and has never been - any reason to suppress academic research, I openly invite Prof. Felten to study and publish matters realted to the encryption involved in Adobe's E-book reader and in the ways DVD's are protected, and in any other controversial case. After all, he seems to be the only one who has an explicit permission to speak freely on such matters!

Wanted: Loveable hero for copyright battle

[Seth Finkelstein]

Months ago, ZDNet had a great article on the "lovable hero" factor:

http://www.zdnet.com/zdnn/stories/news/0,4586,5082 221,00.html [zdnet.com]

Wanted: Loveable hero for copyright battle (excerpt)

Although free speech is supposed to protect expression made by society's fringe elements as well as by the mainstream, public opinion and even judges can be swayed by tales of mischievous crackers poised to attack your computer. "As soon as the judge says 'hacker,' you know you've lost," University of Minnesota law Professor Dan Burk said. "There is an attempt to paint defendants as unsympathetic, low-priority, on the fringe--to make it seem like nobody respectable is going to be harmed except for weird hacker types."

Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

Re:A jury of PEERS!

[Ravensfire]

Errr, isn't that just a bit elitist of you?

How would you argue this case to a normal person? If you told me that you are suing person A to let you do something that they initially forbade you to do, but subsequently (and publicly) gave you explicit consent for, I'd fall over laughing.

WHY would you want to add ANOTHER lawsuit to this world over something that didn't happen? Yes, it would have been nice if this HAD gone farther, but the threat of the lawsuit HAD THE INTENDED EFFECT. They backed off, the good guys won this round.

Next time

[the_2nd_coming]

next time Felton needs to ignore letters and keep going untill the RIAA or the MPAA sues him. then they can not deny that they intended to follow through with the threat since they brought him to court. his case will be much stronger.

Code == Speech

[GrEp]

I can see how the judge threw out the case aginast RIAA/SMDI party because a lack of evidence that harm would come to the plaintiffs, but I totaly disagree about his reasonings for mootnes on the part of the Justice Dept. Code was not equated with writing/speech, so the sale of the professor's works to Scientific American would have not have been a criminal violation of the DMCA.

The best way to get rid of the DMCA and a bunch of other BS that gets passed through congress is to pass one single law. The law would state: "Machine readable encodings are legaly equivalent to human readable text."

As a direct consequence the DMCA would be in violation of the 1st ammendment. Any patents on software would be voided because text to the best of my knowlage is only copywritable, not patentable. The headache of stupid digital legislation would hopefully be behind us.

Re:Wanted: Loveable hero for copyright battle

[GeorgeH]

The problem with this is that popular speech rarely needs to be defended. Protecting unpopular speech is the crux of the freedom of speech, and as such it will be very difficult to have a lovable hero. I guess that's why it's considered a fundamental right - so congress won't fuck with it. Or at least that's the theory.

Re:the case seems valid to me.

[Anonymous Coward]

Slightly flawed logic though. Gilette makes razor blades so you can shave, not so that they can teach everyone how to make razor blades.

Why do you crack SDMI?

Gillette has a clear and legitimate intended use of its product and 99.99% of the time people use its product for that purpose.

What do you think the SDMI cracking paper would be used for 99.99% of the time?

Screw the law, use some common sense. (not that I think the SDMI paper should be quashed, just think for a minute before you try to help the side I'm on)

Implications from this

[GreenCrackBaby]

So RIAA threatens to sue under DCMA if Felton publishes his research. This scares Felton and he doesn't publish. Doesn't appreciate the threat so he sues. RIAA withdraws "threat". Court says, "Well, there is no threat now, so case dismissed."

Here's the implications:

RIAA threatens to sue under DCMA if continues to . gets scared and stops . sues. RIAA withdraws threat. Case dismissed.

Re:Regarding a law's constitutionality

[Brian See]

The courts should be reviewing every law that's passed BEFORE it goes into effect.

...and people complain about crowded courts now.

For better or worse, there's a presumption that Congress passes laws that are constitutional. As much as we might be upset by "bad" laws, do you really want to clog up the courts that way?

Who would be the party in interest? If you REQUIRE court review, you'll have to pay someone. Private attorneys? Sign me up, sounds like subsidies for bored litigators. Note that you can't use the Justice Department, since they're the ones that would have to defend the law.

Who's gonna stand up and challenge (in court) the constitutionality of laws establishing the George W. Bush presidential library, or national broccoli month?

While there are often doozies (like the DMCA, or the law outlawing flag burning) that are (arguably) unconstitutional "on their face", many of the laws that are ruled unconstitutional are ruled so because they're unconstitutional "as applied" to a particular plaintiff.

There's also that little troubling thing in the Constitution about Federal courts only having jurisdiction over actual "cases and controversies", but enough ink is being spilled over that issue with regard to the Felten case.

Your rant makes for a nice position on talk radio or for fist-pounding on the table, but if you think things through, it's nearly impossible to implement.

Re:Reasonable ruling, I guess

[aozilla]

Right, so you can't sue someone to get a judgement in a case that hasn't been brought against you.

You can sue to get a declaratory judgement in a case that hasn't been brought against you, if you have standing. See Roe vs. Wade.

Re:Man, is that ruling ever ridiculous...

[SuiteSisterMary]

Actually, and in other words, if somebody ever creates a robot which can read a blueprint and construct the device in question, all such blueprints become, retroactively, unprotected speech.

Re:Legally, WE'RE the ones who are wrong.

[goldspider]

"it's like a thief (acting on info that he'll get caught) gives back the stolen goods and then walks because, see, he rectified his wrongdoing."

This is a bad analogy, and here's why:

The RIAA (and friends) did nothing illegal by informing Felton of their intent (threat) to sue. It is well within their right to do so.

The thief in your analogy, however DID do something illegal: he actually committed the theft.

"A more apt comparison might be a mafia hitman threatening to break someone's limbs with a baseball bat he's carrying with him. When brought before a judge, said hitman proceeds to say "But your honor, I was only joking!" and then walks."

Again, this analogy is also inaccurate for the same reason: In this case, the thug committed a crime by threatening physical harm, which is illegal.

The real difference here is that the RIAA committed no (legal) wrongdoing before their retraction, whereas the thief and thug did.

Re:Business as usual in the judicial system

[Gleef]

Part of the "chilling effect" point in Felten v RIAA is that Professor Felten has limited control over whether he gets to publish his paper. Universities, publishers, and so on all get intimidated when an organization like the RIAA threatens to sue them if they give Felten a venue to present his research. The 2600 case shows that the threat to publishers is quite real.

It doesn't matter if Felton is willing to martyr himself to present his research (considering his website and this lawsuit I think it's clear that he is willing to go through quite a lot in the name of Free Speech). It doesn't matter because the traditional venues of presenting his speech have been restricted because of a vague law and the RIAA's legal threats.